1987 PLP 47 (CLC)

‑‑‑Art. 199‑‑North‑West Frontier Province Tenancy Act (XXV of 1950), S. 2‑‑Land Reforms Regulation, 1972 (M.L.R. 115), para. 2(13)‑ Constitutional jurisdiction, exercise of‑‑Where Rvenue Courts exercised jurisdiction in accordance with law and within scope of jurisdiction. High Court declined to exercise constitutional jurisdiction to set aside findings thereof. Muhammad Akhtar for Petitioners. Hap Abdur Rashid for Respondents. Date of hearing: 2nd June, 1986. FAIZ MUHAMMAD KHAN, J.‑‑This constitutional petition filed by Muhammad Sher and his son Akbar Khan against Mian Kamal Shah and seven others, is directed against the orders, dated 11‑8‑1982, 29‑10‑1983, 15‑5‑1984 and 22‑11‑1984, respectively made by respondents Nos. 9 to 12 herein.

2. The facts of the case, briefly stated, are that respondents NOS.l to 8 are admittedly owners of land measuring 313 Kanals 16 Marlas, situated in Mahal Hawara of Tehsil Charsadda, out of which they gave on lease 264 Kanals 18 Marlas to petitioner No.1 with whom petitioner No.2, being his son, also entered into cultivating possession thereof. This lease had come into being through the written lease‑deed, Annexure 'A' to this petition, and was for a period mentioned therein, which had come to an end before institution of produce and ejectment suit by respondents Nos.l to 8 against the petitioners. Since the petitioners failed to pay lease money relating to crops of Kharif 1978 and Rabi 1979 to the respondents Nos. l to 8, a suit for recovery of the lease money as well as of ejectment of the petitioners from the land leased out by them was filed before Revenue E. A. C. , Charsadda. The suit was contested by the petitioners in that Court, but was, vide order dated I1‑8‑1982 decreed in favour of respondents Nos.l to

8. The petitioners, against that order, went up in appeal, which was dismissed by the Collector Charsadda, vide order dated 29‑10‑1983. The appellate court's order was challenged by the petitioners in revision before the learned Additional Commissioner, Peshawar Division, who also, vide order dated 15‑5‑1984, dismissed the revision petition, further revision by the petitioners before the Member, Board of Revenue was also dismissed by the learned Member, vide order dated 22‑11‑1984. All these orders have been assailed by the petitioners in this writ petition, as already mentioned.

3. Mr. Muhammad Akhar, Advocate appeared on behalf of the petitioners and Mr. Abdur Rashid, Advocate appeared on behalf of the respondents. They were heard.

4. The learned counsel for the petitioners attempted to argue that when the petitioner No.l had no relationship of lessee/tenant with the respondents Nos.l to 8, the proceedings entertained by the forums below, whose orders have been impugned herein, were without jurisdiction and consequently, the orders made by them of no legal consequence. However, when his attention was drawn to the written statement which was filed by the petitioners before Revenue Court in which petitioner No.2 had accepted his relationship with respondents Nos. 1 to 8 herein, the learned counsel had to abandon this argument, also for the reason that it had not been pressed before any of the forums below at the stage of arguments.

5. The other contention raised by the learned counsel for the petitioners is that after amendment in the Land Reforms Regulation, 1972 was made removing from its purview a lessee, the Revenue Courts were left with no jurisdiction to entertain proceedings in respect of ejectment of a lessee from the land held by him on lease. His precise contention is that since the 'lessee' does not fall within the scope of the definition of the expression 'tenant' as used in the Land Reforms Regulations, 1972, and since this Regulation overrides all other laws for the time being in force, a lessee is, therefore, not ejectable in a suit entertained by the Revenue Court and that for ejectment of a lessee the suit is to be filed in the civil Court. This ground, we would be justified to say when we look at the impugned orders, was neither taken up nor pressed before the forums below and for this short reason could be kept by us out of consideration. However, while dealing with, it is wrong to assume that amendment made in the Land Reforms Regulation, 1972 whereby definition of the expression 'tenant' was inserted therein, would for all purposes also have the effect of inserting in the N.‑W.F.P. Tenancy Act the same definition of the expression 'tenant' for the one which already existed in that law. No doubt, the Regulation overrides all other laws, but only to the extent when the: other laws come in conflict with any of its substantive and procedural; provisions. The definition of the expression 'tenant' inserted in the A Regulation would exclude 'lessee' from its purview and would thereby debar him from claiming the protection which is available to a tenant under the said Regulation. It was never intended that the definition of the expression 'tenant' inserted in the regulation by way of amendment would also have the effect of substituting this definition for the one already appearing in the N.‑W.F.P. Tenancy Act. If the intention of the law‑maker had been the same as advocated by the learned counsel for the petitioners, then very easily it could have been so provided in the Regulation, or an amendment to same effect could have been made in the Tenancy Act. We are, therefore, of the view that a lessee does fall within the purview of the expression 'tenant' as used in the N.‑W.F.P. Tenancy Act, 1950 and is ejectable by the Revenue Court in accordance with the provisions contained in the said Act. Shamshad and 2 others case P L D 1983 Pesh. 27 is authority on the point, with) which we respectfully agree.

6. No other point was urged by the learned counsel for the petitioners before us.

7. Consequently, there is no merit in this writ petition, which weld hereby dismiss with costs. A . A Petition dismissed